Sri Rahayu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1042/2020

[2025] HKCFI 5311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1042 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Lewis Law:

1.  The Applicant’s Form 86 be amended to name the DI as a putative interested party and the Board’s Decision dated 23 January 2020 as the decision sought to be reviewed;

2.  Extension of time to file Form 86 be refused; and

3.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 29 May 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) but did not specify the date of it; neither did she attach a copy of the decision sought to be reviewed to her court documents.

2.Upon clarification with the Applicant in the oral hearing of this application, she confirmed she was seeking to review the Board’s decision made on 23 January 2020 (“the Board’s Decision”). A copy of the Board’s Decision can be viewed by the following hyperlink[1]. The Board’s Decision arose from an appeal/petition against the Director of Immigration (“DI”)’s decision dated 25 January 2019. On my own motion, I amended the Form 86 to name the Board’s Decision as the decision challenged and added the DI as a putative interested party.

3.The Applicant was late in filing this application. Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A) requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose, i.e., when the Board’s Decision was made. The last day of the 3-month period for the Applicant to file his Form 86 fell on 23 April 2020, she was therefore around a month late with this application. In considering whether to extend the period within which the application shall be made, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor [2016] 2 HKC 393).

4.The Applicant did not make any application for extension of time and provided no explanation for the delay in both the Form 86 and the supporting affirmation. However, the delay in this case was not significant. I shall just consider the merits of the Applicant’s leave application in determining if extension of time should be granted.

5.The Applicant is a national of Indonesia who came to Hong Kong initially as a domestic helper. Her non-refoulement claim was based on a money lending dispute with a loan shark, her relationship with a non-Muslim male in Hong Kong and her pregnancy from this relationship (which was out of wedlock). It was said the Applicant’s father considered her a disgrace and would kill/harm her should she return to Indonesia. The Board after an oral hearing came to the view that the Applicant was not at any real risk of ill-treatment from the loan shark or her father. There was also a viable internal relocation alternative.

6.In my judgment, the Board’s Decision was supported by factual findings and the Board had conducted an anxious scrutiny of the available evidence and information.

7.The Applicant has not put forward any public law grounds of illegality, procedural impropriety or irrationality against the Board’s Decision in her court documents or during the oral hearing before this Court. It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the administrative decision-maker. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

8.I refuse granting extension of time to the Applicant to file the Form 86 because of the lack of merits in her proposed challenge. The leave application to apply for judicial review is thus dismissed.

Dated the 7^th day of November 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1